ANNEX III: COMPARISON OF GROUNDS FOR ADOPTION WITHOUT CONSENT IN EU MEMBER STATES

Abandonment or Lack of Contact with Child

Deprivation of Parental Rights

Dispensing with Consent

BELGIUM Parent has lost interest in the child, deprivation of parental rights; has compromised his or her health, safety or morals

BULGARIA Resident in a foster home or institutional care, and parent has not requested the termination or modification of this measure and the return of the child (6 months) Parents continuously fail to provide care for the child, do not provide financial support, or raise and educate the child in a manner harmful to its development.

CZECH REPUBLIC Not manifested a proper interest (6 months) Not trying to rectify their family and social condition within the limits of their possibilities so that they can personally care of the child (6 months)

DENMARK Deprivation of parental rights If dispensing with consent it is of decisive importance to the welfare of the child

ENGLAND AND WALES If dispensing with consent is in the best interests of the child

GERMANY Shown through conduct to be indifferent to the child Persistently grossly violating parental duties Where it would be disproportionately disadvantageous to the child if the adoption did not take place

GREECE Deprivation of parental rights

HUNGARY Not contacting the child (12 months)

IRELAND Parents failed in their duty towards the child (12 months)

ITALY Abandonment: lacking the moral and material care of their parents

LATVIA Treat the child especially badly or does not care of the child or does not ensure the supervision of the child and it may endanger the physical, mental or moral development of the child.

So we can see that England really is not alone in allowing adoption without parental consent – every country has some mechanism for doing so. What makes England unique, however, is the extent to which this mechanism is used.

Claire Fenton-Glynn is a Lecturer in Law at Cambridge University. Her research lies in the field of human rights and the protection of children. She has published on a wide range of issues including inter-country adoption, parental child abduction, and international surrogacy, as well as the right of the child to identity, and child participation in family law proceedings. At the core of this research is the way in which private international law instruments interact with human rights norms, and the protection of children and youth in regional and international instruments.

Are we alone in Europe?

It is a popular myth, perpetuated even by the upper echelons of the English judiciary, that England is alone in Europe in permitting adoption without parental consent.

The United Kingdom is unusual amongst members of the Council of Europe in permitting the total severance of family ties without parental consent. (Professor Triseliotis thought that only Portugal and perhaps one other European country allowed this.)

On the other hand, a 2015 report by the Council of Europe, stated that such adoptions are permitted in Andorra, Croatia, Cyprus, Estonia, Georgia, Germany, Hungary, Italy, Lithuania, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovenia, Sweden, Switzerland, and Turkey. However, it maintained that such adoptions were not possible in France, Greece, Luxembourg and Spain.

As such, there appears to be considerable confusion concerning the extent to which adoption without parental consent – pejoratively named “forced adoption” by some – is permitted throughout Europe.

Every country in Europe permits ‘forced adoption’

As this post will make clear, despite assertions to the contrary, EVERY country in Europe has a mechanism for permitting adoption without parental consent, in certain circumstances. (“Europe” can be defined in a number of different ways, but for these purposes, I mean all 47 Member States of the Council of Europe).

When looking at ways in which an adoption order can be made without parental consent, I have identified three different mechanisms that are used throughout Europe:

Where parental consent is not necessary because of abandonment or lack of interest in the child;

Where consent is not necessary because of parental misconduct or deprivation of parental rights;

Where consent is dispensed with because the parents have refused consent unjustifiably, or because it is in the child’s best interests.

Some States use a combination of these approaches, allowing consent to be dispensed with in a number of different ways.

Child has been abandoned

One mechanism for permitting adoption without parental consent is where a child who has been deemed abandoned by their parents. The precise grounds for not requiring consent in this area vary significantly, including:

abandonment (Albania, Cyprus, Italy);

not contacting the child (Hungary, Malta);

not showing interest (Portugal);

being manifestly disinterested (France);

not participating in his or her upbringing (Azerbaijan, Czech Republic);

Parental misconduct

Parental consent is not necessary because parents have been deprived of parental rights or on the grounds of parental misconduct. The most common way in which consent is dispensed with is where the parents have been deprived of parental rights.

Other countries do not require deprivation of parental rights for consent to be dispensed with, but instead focus on the specific conduct of the parents. This focus varies:

neglect or persistent mistreatment (Cyprus, Malta);

abuse of parental authority (Netherlands);

risk of compromising the child’s health or morals (France);

persistently grossly violating parental duties (Germany);

not caring for the child to any meaningful degree (Switzerland).

In some countries, the deprivation of rights must have lasted for a set period of time before an adoption can be granted, for example:

where the parents have been deprived of parental rights for longer than six months six months (Russia);

where the parents have been deprived of parental rights for a period of one year (Azerbaijan, Georgia, Slovenia);

Dispensing with parental consent by overriding an unjustified refusal, or in the child’s best interests

Another common mechanism for allowing adoption without consent is where the parents’ refusal is overridden in certain circumstances:

if the court adjudges the consent to be “unreasonably” withheld (Cyprus, Malta);

“refusal without justification” (Austria, Liechtenstein);

if the refusal is “abusive”, (France) or consent is “abusively denied” (Greece)

However, in Romania, even if parents are deprived of parental rights, their consent is still needed.

A shift to a process based on the welfare of the child

On the other hand, some jurisdictions have shifted to a process that is more explicitly based on the welfare of the child. This position is in line with the requirement under the UN Convention on the Rights of the Child. Article 21 of this Convention, which deals with adoption, is the only article under which the child’s rights must be the paramount, rather than merely the primary, consideration.

Such legislation can be seen in the following jurisdictions:

if the parents’ refusal of consent is clearly contradictory to the child’s welfare (Poland);

if the refusal is not sufficiently justified taking into account the best interests of the child (Finland);

if it is of decisive importance to the welfare of the child (Denmark);

if it is in the best interests of the child (Malta, England and Wales).

But what makes us unique is the extent to which we rely on ‘forced adoption’.

What does all this mean?

So we can see that England really is not alone in allowing adoption without parental consent – every country has some mechanism for doing so. What makes England unique, however, is the extent to which this mechanism is used.

Governmental statistics indicate that of the child placed for adoption in England in the year ending March 2014, 4,870 were completed without parental consent, with only 130 the result of voluntary placements on the part of the parents. This constituted 96% of all adoptions. (Department for Education, “Statistics: looked-after children” (30 September 2014))

Statistics in this area are difficult to come by from other jurisdictions, and in particular statistics disaggregated in this way are not easily accessible. Research indicates that the Netherlands only have about 20 adoptions per year in total (though it is unclear whether these are with or without parental consent), while France generally has around 700, however, 600 of these are as a result of an anonymous birth (“accouchement sous X”).

So what is happening to the children in other countries? And why are outcomes for children in care in the UK so bad?

So the question we really should be asking is: what is happening to all the children in these countries who would be placed in adoption in the England? Are they staying with their parents, with support from the authorities? Or are they placed in another form of alternative care? If so, what are the outcomes for this?

One of the difficulties we face in England is that the outcomes for children in state care are dire. In 2014, the Department of Education noted that looked after children continue to have poorer educational outcomes than other children, and 66.6% have special educational needs. In the year prior to March 2014, 5.2% of looked after children from 10-17 had been convicted or subject to a final warning or reprimand, while 3.5% of all looked after children had a substance misuse problem. Of children aged 16 and 17, the rate of conviction, final warning or reprimand raised to 10%, and the rate of substance abuse 10.8%. Statistics also showed that looked after children were also twice as likely to have been excluded from school, and around only 50.4% of looked after children had emotional and behavioural health that was considered “normal”, with 12.8% more “borderline”, and 36.7% “cause for concern”.

We can thus see that there is a tension between leaving children in public care, where the outcomes for children are simply unacceptable, and the placement of children for adoption without parental consent. There is no doubt that many children do not thrive in public care in England, and thus leaving them in this environment is detrimental to their welfare. The response has been to place more children in adoption, rather than to address the reasons why public care is so harmful, and seek better alternatives. In this respect, we need to look to other jurisdictions, and learn from each other. There are always going to be children who need to be separated from their families – the question is how best to provide long-term care for them that gives them stability, security, and all of life’s chances. Currently, we are not achieving this.

How do children get adopted?

The first thing to remember is that care proceedings are NOT adoption proceedings.

The relevance of the 26 week timetable and placement orders

The first and very important point to make is that care proceedings are not adoption proceedings. Before a child can be adopted, The LA has to obtain a placement order. This is often applied for at the same time as a final care order.

However note section 22 of the ACA – a LA can apply for a placement order if a child is simply accommodated by them under section 20 of the Children Act 1989. This can cause problems as it is likely parents had much less access to legal help and advice if their children went into LA accommodation via section 20 and NOT via care proceedings – where the proceedings are in a court and legal help and representation is automatic.

A Placement Order is made by a court under section 21 of the Adoption and Children Act 2002. It allows a LA to find an adoptive home for a child. If the parents don’t agree with this, the court can decide to go ahead without their consent, if the court decides this is the right thing to do for the child.

The court cannot make a placement order unless:

the child is subject to a care order OR

the court is satisfied that the conditions in section 31(2) of the Children Act 1989 are met (for example a child in a ‘foster to adopt’ placement if there are no care proceedings); OR

the child has no parent or guardian

The conditions set out in section 31(2) are those required to exist before a court can make a care or supervision order:

that the child concerned is suffering, or is likely to suffer, significant harm; and

that the harm, or likelihood of harm, is attributable to—

the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

the child’s being beyond parental control.

This is a high threshold – for obvious reasons. Taking children away from their families is recognised as the most serious interference with people’s family and private lives; it has life long consequences for all concerned.

Section 22 of the ACA sets out that a local authority must apply to the court for a placement order in respect of a child if:

the child is placed for adoption by them or is being provided with accommodation by them,

no adoption agency is authorised to place the child for adoption,

the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and

the authority are satisfied that the child ought to be placed for adoption.

Speeding up care proceedings

The government became so concerned by how long care proceedings were taking that section 14 of the Children and Families Act 2014 now provides that care proceedings must finish as soon as possible or in any event, take no longer than 26 weeks to conclude.

Care Proceedings may go beyond 26 weeks when this is necessary to resolve the proceedings justly. The Children And Families Act further provides at section 14(5).

A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

Adoption can take place either with parents’ consent or by order of the court.

If parents give consent, both must do so, and the consent can be withdrawn at any time until the Adoption Order is made. A mother cannot give her consent until her child is at least six weeks old.

Assuming that the parents do NOT consent to adoption, the most likely route by which a child becomes adopted is:

a final care order, endorsing a plan for adoption; then

a placement order which authorises the LA to place a child for adoption (often made at the same time as the final care order); then

an adoption order which gives the child the legal status as child of his adoptive parents.

Some parents express anxiety that a social worker could simply come and take their children away to be adopted but the reality is that it is the court that makes the adoption order and this will be the final order in what is usually a fairly long set of proceedings.

After the final care and placement orders are made, the LA will look for possible adoptive parents for the child – this may take many months as there are more children waiting to be adopted than there are adoptive parents.

If a placement order is made and the LA can’t find an adoptive family for the child, it should consider applying to revoke the placement order – we discuss revoking the placement order below. However, this does not necessarily mean that the child will return to his birth family; the LA may instead look for a long term foster placement.

Dispensing with the parents’ consent to placement or adoption orders

(1)The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(a)the parent or guardian cannot be found or is incapable of giving consent, or

(b)the welfare of the child requires the consent to be dispensed with

Adoption will sever all legal ties between the parent and child. An adoption order can only be reversed in very rare circumstances. However, we have moved on some way from the climate of previous years when children might not even be told they had been adopted; now much more openness is expected and children and birth parents can keep a link with one another even after the adoption order is made. Most commonly this is by letters and photos a couple of times a year.

Some adoptions are ‘open’ and direct contact can continue after the order, but this is rare. We agree more research about supporting direct contact post adoption would be beneficial.

Adoption orders

Who can apply to adopt a child?

Applicants must live in the United Kingdom, Channel Islands or the Isle of Man. They must be 21 years old (if the child’s father or mother, they can be 18 years old, but the other adoptive parent must be 21), and the child must have lived with them for at least 10 weeks before the application is made.

What happens after an Adoption Order is granted?

The adoption is permanent. An adoption certificate is issued for the child with his/her new name. This replaces his/her birth certificate. The child receives the same rights s/he would as if the birth child of the adoptive parents (e.g. – rights to inheritance). All those who previously had parental responsibilities for the child lose them.

I don’t agree my child should be adopted – what can I do?

A parent has the following options. it will depend at what stage of the proceedings you have reached and what orders have already been made.

Final care order made but no placement order. If a placement order hasn’t been made yet, you may be able to appeal against the care order or apply to discharge it. We discuss this in another post – I want to appeal or discharge the care order.

Final care order and placement order made – Parents can apply for leave to revoke a placement order under section 24 of the ACA 2002, IF:

their child hasn’t yet been placed for adoption; and

they can show a ‘change of circumstances’ since the placement order was made.

Potential adoptive parents have applied for an adoption order – Parents can apply for permission to contest the making of an adoption order under section 47(7) of the ACA 2002 but only if they can show a ‘change of circumstances’

An adoption order has been made – it is possible for the court to revoke an adoption order using its ‘inherent jurisdiction’ but this is a very exceptional and very rare step for the court to take. See the case of PK v Mr and Mrs K [2015] EWCH 2316 for consideration of the law about revoking adoption orders, and an example of where the court agreed to do it. For a helpful overview of the cases where adoption orders have been overturned, see this article by Dr Julie Doughty of the Transparency Project in 2016.

Can I have contact with my child after an adoption order is made?

The Children and Families Act 2014 came into force on 22nd April 2014 and introduced a new section 51A of the Adoption and Children Act 2002 which will allow applications to be made for contact after an adoption order has been made. Suesspicious minds has written a detailed post explaining this here.

Why are adoption orders made?

The general view is that if a child can’t be safely looked after in his birth family, finding an adoptive family represents the best chance that child will have of achieving stability in his childhood.

The key distinction between adoption and fostering is that an adopted child will be part of a new family whereas a foster carer is a paid professional. For further discussion, see our post on the differences between adoption and fostering.

However, the older the child or the more challenging his behaviour, the less likely it is that adoption will be the right outcome for that child. An older child, with clear memories of birth families or other carers may not find it easy to become part of the adoptive family. it is clear there are serious issues around the availability of post adoption support.

Research published on April 9th 2014 by the University of Bristol offers another perspective on adoption disruption rates, concluding that they are low but emphasising the importance of post adoption support, particularly for older and more challenging children.